Re-Designing Democracy, The Economy, And The BC Environmental Assessment Process

1.0 Critique of the BC Environmental Assessment Process First I would like to address a central legal flaw in the BC environmental assessment process. Presently, the lands and waters where all the private energy projects are taking place are assumed by the Provincial Crown to be "Provincial Crown lands and waters" within their section 92, constitutional jurisdiction. This presumption is reflected in Provincial legislation governing Lands, Water, the Environmental Assessment Process, the establishment of Provincial Park boundaries, Company, Securities law, etc. and the issuance of licenses, rights, entitlements thereto. Recently, the legal foundations of those assumptions and that legislation have been substantially shaken by the December 2007 'Tsilcotin decision involving First Nations peoples residing in the vicinity of Brittany Triangle in north-eastern British Columbia, a decision, having significant impact to the entire province and the relations between First Nations government and the Provincial and Federal Crowns. The December 2007 decision involving the Tsilcotin peoples, while not deciding the specific matter of aboriginal title over lands and waters, does distinguish between 'Crown lands and waters" as one category, and 'First Nations lands and waters' as another. Secondly, it does establish that the Provincial Crown has no constitutional jurisdiction to do land use planning or issue permits for development on 'First Nations lands and waters' within the geographic territory of British Columbia, that being, per the Constitution 1867, and the Charter, a federal and First-Nation co-responsibility. Therefore, it is my legal opinion, that the Provincial Environmental Assessment process, and the EA office, as well as the water license issue process, is constitutionally ultra vires the Province of British Columbia to the extent that if affects directly or indirectly federal government constitutional responsibility for "Indians", and s. 35 Charter rights of aboriginal peoples within the province. In my view, the Province of British Columbia has no business doing land use planning or issuing development permits or water licenses involving "First Nation's lands and waters', as that is presently a Federal government and First Nation government co-jurisdictional matter, and later, upon the resolution of the title question, strictly a First Nations governance matter. Nonetheless, looking at the Environmental Assessment process as presently established by the Provincial Crown it is noteworthy that a Minister of the Provincial Crown appoints the Executive Director of the Environmental Assessment Office. It is thus a political appointment, and implicit within the politicalization of that office are a set of values closely aligned with neo-liberal ideology and the de-construction or hollowing out of the state and citizen’s democracy, all for the benefit of the corporate sector and their lobbyists. Regardless of which political party is elected in British Columbia, the political power architecture in Victoria is rigged to concentrate political and fiscal power in the Executive Branch, primarily the Premier's office. Citizens and governance by municipalities/regional districts/ cities and First Nations are legally compromised and seriously injured as a consequence of this out-dated, colonial governance design. Considering the Act and Regulations governing the EA process, the Executive Director has the sole authority to decide the 'scope' of the EA. This implies a 'set of values and perspectives that are beyond public scrutiny are automatically relied upon to establish the scoping parameters. That raises a reasonable apprehension of bias, if not actual bias of the entire assessment process. With regard to 'scoping' - there is no meaningful public input into the scoping process, it is done completely behind closed doors by a highly politicized civil service. There is nothing to ensure that scoping is not done in a patently unreasonable manner, in a capricious manner, in a manner that is willfully blind, or that ignores the totality of evidence before the Executive Director. Furthermore, there are no provisions within the statute creating the EA office that citizens can turn to so as to obtain legal remedies to these potential deficits in decision-making. A more democratic scoping process would require answers to such basic questions as: what values should be relied upon to determine scoping? Is this project needed to meet local, regional, provincial electrical energy demand needs? Are there alternatives? In what manner should alternatives be assessed vis a vis proposals by corporate proponents? Rather then giving final decision-making for scoping to the politicized Executive Director, a much more democratic process, relying on a round-table of community stakeholders, with less weight given to the corporate stakeholders should be designed. Presently the scoping process appears to arbitrarily establish the geographical area considered, and does not assess cumulative regional or provincial impacts, but only impacts on a project-by-project basis. Finally, with respect to scoping, the question of who should have the legal authority to submit projects to the EA office for environmental assessment needs to be re-considered? At this point, corporations, upon deciding that a potential project may be financially benefit their shareholders (not workers, not communities, not the environment, not First Nations), are entitled to make direct application to the EA office to have their project assessed. Why should corporations, whose controlling shareholders may not live in British Columbia and may not even be Canadians, have the legal right to directly submit a project to the EA office, and given the EA office's track record, obtain virtually 100% assured approval, while local people, citizens, and their local governments, cannot even consider the project at the local level, to determine whether a proposed project is wanted or needed to meet local or regional needs for electrical energy, or whether the construction of the proposed project will terminate other opportunities in non-energy sectors, such a recreation, tourism, etc. A most serious nail that needs to be driven in the coffin of the EA process is the fact that it, and Bill 30, completely disempowers local democratic governance over the economic development process in British Columbia. 1.1 The EA Terms of Reference Process There seems to be a lot of attention put on the Terms of Reference process. Many have witnessed the Terms of Reference Process during the KlinaKlini public consultation period and the limited time period provided there for public comment, an abbreviated time limitation that likewise is applied to the Pitt River and other private energy projects. What you have not seen, because it is not transparent, is the degree of weight or importance given to public comments, or to comments by governmental officials. Considering that virtually all energy proponents who apply to the Environmental Assessment Office do successfully obtain a Minister_s Environmental Assessment Certificate, one can reasonably infer that public comments are given minimal weight/importance in the decision-making process vis a vis the weight given to corporate proponent submissions or the weight given to the BC Energy policy which drives the private energy agenda. This is manifestly unfair and in my legal opinion violates several aspects of the doctrine of fairness that applies to all administrative decisions by government, a legal doctrine elucidated in the Supreme Court of Canada_s Baker decision. 1.2 Institutional Bias and the EA office Furthermore, evidence is available that demonstrates, that the EA office is deeply divided. On one hand they facilitate corporate proponents on how to successfully engage in a timely manner with the EA process, and on many occasions various Ministers of the Provincial Crown, including those responsible for the EA office, have had meetings with those who lobby on behalf of the private power sector, or Ministers and their senior aides have attended "Independent Power producer" conferences where they had close and multiple communications with corporate leaders active in the private renewable energy sector. Yet, on the other hand, those same Provincial Crown Ministers, or their close political appointees are required, under the doctrine of administrative fairness, to make discretionary administrative decisions in a manner that meets the various legal requirements of the fairness test as elucidated by the Supreme Court of Canada in the Baker and other decisions. This is an impossible contradiction that needs to be challenged legally. This is evidence of institutional bias. 2.0 Towards Constituent Assemblies & Direct Participative Democracy We need to be much bolder in confronting this EA process, denouncement and mere reaction to the rules that business-centred representative governance makes is not sufficient. We must move to being pro-active to propose a community design process that is deeply democratic, that roots and balances decision-making power to a multitude of places other than the Premiers Office in Victoria or in the offices of political party leaders. We must entrench the concepts of subsidiarity and localized constituent assembles in our political thinking so that we may re-design the political and fiscal institutional architecture of this province in a manner that greatly empowers shared governance by municipalities/cities, First Nations governments and the great mass of working people who interests are clearly not served by outdated political institutional structures or the political masters in Victoria who dance to a corporate and continentalist tune. The time has come to move boldly beyond representative democracy which allows a representative of a constituency, once elected, to vote as they please or to vote strictly along party lines, rather then directly representing, as agents, the instructions of their electorate who are their principals. The directing mind over the conduct of Members of the Legislative Assemblies (MLAs) must not be the Leaders of the political parties or the individual MLA but rather, the citizens who elected them. If we wish to deepen our democracy and empower citizens we must establish and fund direct democracy constituency councils within each political constituency, whose membership, elected by the constituents, selects and recalls the person(s) as agents who will directly take citizen's instructions to the Legislative Assembly. Deep democracy requires that the freedom of elected representatives to represent their interests, the interests of non-voting lobbyists and the interests of their political parties must be curtailed while the rights of citizens to participate in the legislative rule-making and appointment process must be expanded all the way up from the neighbourhood level right to the Legislature and into the judicial system. Most certainly our destiny is ours to choose. History has not ended, and despite Maggie Thatcher’s utterances there are other dances then TINA, or ‘blairite capitalism with a human face’. New rules and new rule-making authority must evolve from the sovereign rights of citizens to govern themselves. To generate a much better future for ourselves and future generations we can assuredly rely on core human rights values as stipulated within international human rights instruments. These are legal accords and values, ratified by Canada that entitle us, as a people, to be masters of our own governance and economic development models, and not subservient victims of the corporate and colonial governance design. That is, it is our “response–ability” to develop a governance and economic development model whose values are deeply informed by international human rights instruments, and to reject those models whose values come from the corporate world -- models whose implementation are seriously damaging to the natural world, our equal human rights as citizens, and which has led to a provincial climate of greater poverty, despair, disempowerment, exclusion and inequality. 3.0 Re-Localizing Deep Economy and Use Value Production Parallel to the deepening and re-localization of our democracy we must, I suggest, deepen, re-localize and refocus the orientation of production and consumption within our economy. Rather then producing commodities for the global market we ought to efficiently produce more green use-value goods to be used and equitably distributed to peoples within the region, province and country. Use value goods include a vast array of public goods such as the public ownership, production and distribution of electrical energy, health care services, clean water provision, access to public housing, etc. The orientation towards a use value goods producing economy coupled with increased democratization of the economy via worker and community controlled co-operatives, rather than majority shareholder controlled corporations, are steps along the way towards civilizing and re-localizing our economy, and ending the commodification of nature and labor by Capital for the global market. Rather then letting the values and interests of corporations, security markets, pension fund administrators or the Premier's office decide what economic development takes place in your region, democratically elected constituent assemblies localized perhaps to units the size of neighbourhoods and relying on the principles of subsidiarity, participative budgeting and a human rights driven model of economic development must be the guiding decision-making values that drive the economic development process in this province. Growth, and yet more growth is not necessarily better. It neither contributes to more genuine progress nor to happiness. Surely, deepening economic democracy must de-link itself from the ancient paradigm that says increased Gross Domestic Product (GDP) is the primary parameter to judge whether an economy is robust. Deep economy in British Columbia must seriously question the mind-set that economic growth is always good, and much more economic growth is therefore even better. To tread with a lighter ecological footprint requires that we minimize the chaos of the market and the substantial legal powers of corporations to externalize their costs. Simply put, the time is here to declare again: there are limits to growth, and it is especially time that corporations be lawfully be required to internalize the costs they have previously externalized to the environment and upon working men and women. As an alternative, deep economy requires the democratic establishment of a set of genuine progress, or genuine wealth indicators (which is more than triple bottom line accounting) such as has been developed by Atlantic GPI or the Oregon Progress Board. Once established we can then guide our economic development planning and determine with accuracy just how successful we are as a society in realizing genuine progress, including greater happiness for citizens. While I could go on at length to clarify this essay, and the various topics I have but lightly touched upon, these cursory comments will have to presently suffice. If your community or constituency is interested in inviting me to speak in greater detail about the aforementioned topics, or to engage in a public discussion or a innovative policy dialogue, please contact me at your convenience. © Peter Dimitrov/bcpolitics.ca, February 14, 2008